State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to issue advisory
opinions. The
ensuing staff advisory opinion is based solely upon the information presented
in your
correspondence.

Dear

I have received your letter and the materials attached to it. The matter
involves difficulties
that a constituent has encountered in his efforts in gaining access to records
under the Freedom of
Information Law. You have sought "assistance in determining if the FOIL
has been correctly
applied..."

The initial issue involves the time in which agencies, in this instance,
various municipalities,
respond to requests for records. One town, according to your constituent, acknowledges
the receipt
of requests and indicates that, in his words, "that they will make a decision
after the allowable time
of 30 days." In this regard, as you are likely aware, the Freedom of Information
Law provides
direction concerning the time and manner in which agencies must respond to
requests. Specifically,
§89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five
business days of the receipt of a written request for a record
reasonably described, shall make such record available to the person
requesting it, deny such request in writing or furnish a written
acknowledgement of the receipt of such request and a statement of
the approximate date when such request will be granted or denied..."

Based on the foregoing, an agency must grant access to records, deny access
or acknowledge the
receipt of a request within five business days of receipt of a request. When
an acknowledgement is
given, it must include an approximate date indicating when it can be anticipated
that a request will
be granted or denied.

I note that there is no precise time period within which an agency must grant
or deny access
to records. The time needed to do so may be dependent upon the volume of a
request, the possibility
that other requests have been made, the necessity to conduct legal research,
the search and retrieval
techniques used to locate the records and the like. In short, when an agency
acknowledges the
receipt of a request because more than five business days may be needed to
grant or deny a request,
so long as it provides an approximate date indicating when the request will
be granted or denied, and
that date is reasonable in view of the attendant circumstances, I believe that
the agency would be
acting in compliance with law.

Notwithstanding the foregoing, in my view, every law must be implemented
in a manner that
gives reasonable effect to its intent, and I point out that in its statement
of legislative intent, §84 of
the Freedom of Information Law states that "it is incumbent upon the state
and its localities to extend
public accountability wherever and whenever feasible." Therefore, if records
are clearly available
to the public under the Freedom of Information Law, or if they are readily
retrievable, there may be
no basis for a lengthy delay in disclosure. As the Court of Appeals has asserted:

"...the successful implementation of the policies motivating the
enactment of the Freedom of Information Law centers on goals as
broad as the achievement of a more informed electorate and a more
responsible and responsive officialdom. By their very nature such
objectives cannot hope to be attained unless the measures taken to
bring them about permeate the body politic to a point where they
become the rule rather than the exception. The phrase 'public
accountability wherever and whenever feasible' therefore merely
punctuates with explicitness what in any event is implicit"
[Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].

Further, the advice rendered by this office was confirmed in Linz v. The
Police Department
of the City of New York (Supreme Court, New York County, NYLJ, December 17,
2001), in which
it was held that:

"In the absence of a specific statutory period, this Court concludes
that respondents should be given a 'reasonable' period to comply with
a FOIL request. The determination of whether a period is reasonable
must be made on a case by case basis taking into account the volume
of documents requested, the time involved in locating the material,
and the complexity of the issues involved in determining whether the
materials fall within one of the exceptions to disclosure. Such a
standard is consistent with some of the language in the opinions,
submitted by petitioners in this case, of the Committee on Open
Government, the agency charged with issuing advisory opinions on
FOIL."

If neither a response to a request nor an acknowledgement of the receipt
of a request is given
within five business days, if an agency delays responding for an unreasonable
time after it
acknowledges that a request has been received, if the acknowledgement of the
receipt of a request
fails to include an estimated date for granting or denying access, or if the
estimated date is
unreasonable, a request may, in my opinion, be considered to have been constructively
denied [see
DeCorse v. City of Buffalo, 239 AD2d 949, 950 (1997)]. In such a circumstance,
I believe that the
denial may be appealed in accordance with §89(4)(a) of the Freedom of
Information Law. That
provision states in relevant part that:

"...any person denied access to a record may within thirty days appeal
in writing such denial to the head, chief executive, or governing body,
who shall within ten business days of the receipt of such appeal fully
explain in writing to the person requesting the record the reasons for
further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination
is not rendered
within ten business days of the receipt of the appeal as required under §89(4)(a)
of the Freedom of
Information Law, the appellant has exhausted his or her administrative remedies
and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v.
McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

Second, and in a related vein, a village apparently will not accepts a request
for records
unless the request is made on its prescribed form. In this regard, although
an agency may require that
a request be made in writing pursuant to §89(3), there is no provision
in the Freedom of Information
Law that refers to the use of any particular form. Consequently, it has consistently
been advised that
any written request that reasonably describes the records sought should suffice.

It has also been advised that a failure to complete a form prescribed by
an agency cannot
serve to delay a response or deny a request for records. A delay due to a failure
to use a prescribed
form might result in an inconsistency with the time limitations discussed earlier.
For example,
assume that an individual requests a record in writing from an agency and that
the agency responds
by directing that a standard form must be submitted. By the time the individual
submits the form
and the agency processes and responds to the request, it is probable that more
than five business days
would have elapsed, particularly if a form is sent by mail and returned to
the agency by mail.
Therefore, to the extent that an agency's response granting, denying or acknowledging
the receipt of
a request is given more than five business days following the initial receipt
of the written request,
the agency, in my opinion, would have failed to comply with the provisions
of the Freedom of
Information Law.

A standard form may, in my opinion, be utilized so long as it does not prolong
the time
limitations prescribed by law. For instance, a standard form could be completed
by a requester while
his or her written request is timely processed by the agency. In addition,
an individual who appears
at a government office and makes an oral request for records could be asked
to complete the standard
form as his or her written request.

In short, it is my opinion that the use of standard forms is inappropriate
to the extent that is
unnecessarily serves to delay a response to or deny a request for records.

And third, a key issue involves the requirement imposed by §89(3) that
an applicant must
"reasonably describe" the records sought. I note that the original
version of the Freedom of
Information Law enacted in 1974 required that an applicant seek "identifiable" records.
That
standard often resulted in an impossibility, for in many instances applicants
could not name or
identify records sought with specificity. In its consideration of the requirement
that an applicant
reasonably describe records, which became effective in 1978, the Court of Appeals
has held that a
request meets that standard when an agency can locate and identify the records
based on the terms
of a request, and that to deny a request on the ground that it fails to reasonably
describe the records,
an agency must establish that "the descriptions were insufficient for
purposes of locating and
identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245,
249 (1986)].

Although it was found in the decision cited above that the agency could not
reject the request
due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to the
nature - or even the existence - of their indexing system: whether the
Department's files were indexed in a manner that would enable the
identification and location of documents in their possession (cf.
National Cable Tel. Assn. v Federal Communications Commn., 479
F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability
under Federal Freedom of Information Act, 5 USC section 552 (a)
(3), may be presented where agency's indexing system was such that
'the requested documents could not be identified by retracing a path
already trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of the
agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as
suggested by the Court
of Appeals, may be dependent upon the terms of a request, as well as the nature
of an agency's filing
or record-keeping system. In Konigsberg, it appears that the agency was able
to locate the records
on the basis of an inmate's name and identification number, and I believe that
a request would
reasonably describe the records insofar as the records can be located with
reasonable effort. On the
other hand, if particular records cannot be located except by means of a review
of what may be
hundreds or thousands of records individually, the request would in my opinion
not reasonably
describe the records. In that event, the records access officer could explain
that the records are not
kept in a manner that would permit their retrieval in conjunction with the
terms of the request and
indicate how the records are kept.

In the context of requests made by your client, if, for example, a request
is made via the
identification of an address or parcel number, and if a municipality maintains
records by address,
locating records may be an easy task. In contrast, assuming that minutes of
meetings are not indexed
by subject matter but rather are kept chronologically, a request for minutes
during which a particular
parcel was discussed, particularly if the request does not include reference
to a time period, might
not reasonably describe the records. In that instance, it may be necessary
to review the minutes of
every meeting held over the course of years in order to locate those of interest.
To avoid that kind
of problem, it has been suggested that applicants attempt to become familiar
with agencies' record
keeping systems and that they seek records in a manner that enables agency
to staff to locate the
records with relative ease.

I hope that I have been of assistance. Should any questions arise, please
feel free to contact
me.